Testimony of David Wolfe, Creative Director The ... - Public Knowledge

E s s a y s : B e t w e e n t h e S e a m s , a F e r t i l e C o m m o n s
Fashion designs, particularly for clothing, fall
between the seams of traditional intellectual
property protections.
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The classic shirtdress,
revisited.
develop new looks every season. Creativity thrives in the absence of
intellectual property protection.
What can we learn from this seeming paradox? This paper will
examine the reasons why fashion design generally is not protectable
under existing intellectual property regimes, and consider how the
fashion experience might inform ongoing debates about desirable
levels of intellectual property protection in other creative industries.
why not fashion?
In recent years, the scope of U.S. intellectual property protection
has expanded greatly in a variety of fields. Patents now are granted
over plant varieties and common business methods, areas for which
the U.S. Patent and Trademark Office previously had been hesitant
to issue protection. Copyright terms have been extended to a
staggering length of time — life plus 70 years — far longer than
the 14-year term originally contemplated by the drafters of the
Constitution. Powerful industry lobbies continue to push for ever
stronger intellectual property protections.
Despite these recent expansions that have benefited, among
others, the biotech, pharmaceutical, movie and recording industries,
the fashion industry receives little protection under current U.S.
intellectual property laws. This is not to say that certain fashion
houses have not tried to obtain intellectual property protections
for their designs, for valiant efforts have been made in this regard.
While these efforts have succeeded in protecting limited design
elements, however, fashion design as a whole receives little to no
protection. Knockoff goods are a huge part of the fashion industry
and are accepted as common practice. With a system that tries its
best to forbid sampling and remixing at every turn, how can such an
extensive and fertile commons be allowed to exist?
Fashion designs, particularly for clothing, fall between
the seams of traditional intellectual property protections. 4
Copyrights generally are not granted to apparel because
articles of clothing, which are both creative and functional,
are considered “useful articles” as opposed to works of art.
Design patents are intended to protect ornamental designs,
but clothing rarely meets the demanding criteria of patentability,
namely novelty and nonobviousness. Trademarks
only protect brand names and logos, not the clothing itself,
and the Supreme Court has refused to extend trade dress
protection to apparel designs. Congress repeatedly has
declined to enact legislation that would provide sui generis
design protection.
Fashion designs are not unprotected merely because they
fall into a legal limbo between intellectual property schemes,
however. Both policymakers and courts have been guided
by compelling policy reasons to limit design protection. 5
They have expressed concerns that, while such protection
might benefit certain designers, it could create monopolies
in the fashion industry that would stifle the creativity of
future designers, hinder competition and drive up prices for
consumer goods. Designers could demand payment for design
elements that currently are free, and this cost would be borne
by others in the industry and by the public. The less affluent
would not be able to afford the range of fashions they
currently enjoy. 6 Therefore, policy advisors have been unconvinced
that “new protection will provide substantial benefits
to the general public which outweigh removing such designs
from free public use.” 7 As one judge put it, “Congress and the
Supreme Court have answered in favor of commerce and the
masses rather than the artists, designers and the well-to-do.” 8
copyright
Copyright law is used to protect artistic creations, including
music, films, paintings, photographs, sculptures and books. 9
While U.S. copyright law protects “applied art,” such as
artistic jewelry, patterns on dinnerware or tapestries, it does
not protect “useful articles,” such as automobiles or television
sets that, while attractively shaped, are primarily functional.
10 Apparel designers have tried to obtain copyright
protection for their designs by suggesting that clothing is a
type of sculptural work. However, copyright law generally
has not provided protection for wearable designs because
clothing is considered a useful article that (among other
things) protects its wearer from the elements, provides
modesty and decorates the body.
While copyright law normally does not protect useful
articles, it does protect aesthetic elements of a useful
article if those features amount to works of art “that can
be identified separately from, and are capable of existing
independently of, the utilitarian aspects of the article.” 11
This “separability” rule was developed in the landmark 1954
case of Mazer v. Stein, 12 in which the Supreme Court held
that Balinese statuettes that formed the bases of lamps
were copyrightable because the aesthetic work in question
(a statuette) was separable from the useful article (a lamp).
The statuettes could be copyrighted as independent works
of art even though they also could be used as lamp bases. 13
While lamps with statuette bases offer a relatively easy
example of separability, it is much more difficult to separate
aesthetic elements of most fashion designs, particularly
clothing designs, from their function. An unusual neckline,
flared sleeve or cinched waist — while attractive and
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